August 18, 2008
Another notable sentencing opinion in a child porn downloading case
I mentioned in this recent post that I have noticed an extraordinary amount of variation in charging, bargaining and sentencing realities in child porn downloading cases. And today I received a copy of a recent sentencing opinion in such a case that provides another example of the challenges these cases present.
The opinion in US v. Ontiveros, No. 07-CR-333 (E.D. Wisc. July 24, 2008) (available for download below), which explains the court's reasons for giving a sentence of five years' imprisonment rather than a much higher sentence recommended by guidelines, has lots of notable passages. I found especially interesting the discussion of the defendant's offense behavior:
Ontiveros, like many who have accessed child pornography via their computer, seems not to have initially appreciated the magnitude of the offense he was committing or the risk that he would be caught. The manner in which computer technology and high speed internet access have made such material readily available in the presumed privacy of the home has removed several substantial impediments to seeking out such material that previously existed. No longer must a person travel to the seedy side of town, walk into a dirty book store, make a request for the sordid material to another person from whom one’s identity could not be readily concealed, and pay for it. The easy availability of the material at no cost with the click of a mouse, while at the same time preserving one’s anonymity, leaves little but one’s natural aversion to depictions of the abuse and degradation of children to stand in the way of obtaining it. And as the popular culture has become more and more saturated with a debased concept of human sexuality, this natural aversion in many people seems to have grown weaker.
A further factor seems to be the lack of appreciation of the harm that simply viewing such material does to children. In some respects, the internet seems analogous to a huge file cabinet containing an almost limitless number of documents and other forms of information. Under this view, accessing child pornography can be rationalized as simply pulling out a drawer and simply looking at photo that someone else took in the past. As long as the individual who accesses the pornography is not himself abusing children to produce it, selling it in order to profit from it, or paying for it so as to stimulate demand for it, he can tell himself that he has done no harm to the children depicted. This line of reasoning, of course, is directly contrary to Congress’ finding, noted above, that “[e]very instance of viewing images of child pornography represents a renewed violation of the privacy of the victims and a repetition of their abuse.” Pub. L. 109-248, Title V, § 501, July 27, 2006, 120 Stat. 623. And it also ignores the fact that further demand for such material is fueled by those who seek it out and share it with others. But these harms are indirect and abstract, and thus often unappreciated or easily ignored. This is apparently why people who express shock at the idea that they would ever intentionally harm a child can engage in such behavior.
While these changes in technology and the culture, and the lack of appreciation of the harm done to children do not excuse the behavior, they do suggest an explanation for why people such as Ontiveros with no previous history of criminal or abusive conduct seem to be committing such crimes with increasing frequency. They also suggest that with the realization that such conduct is not anonymous, that it carries substantial penalties, and that even simply viewing it does substantial harm to children, first-time offenders such as Ontiveros are unlikely to repeat. Treatment directed to increasing such awareness can be provided within the sentence structure I have ordered.
Some related posts:
Seeking data sets on the SCOTUS criminal docket
Over at SCOTUSblog is this new post, headlined "ABA Review: The Supreme Court’s OT07 Criminal Docket." That post links to a previous SCOTUSblog review of the Justices' voting records during the 2007 October Term, and it also links to this terrific summary prepared by Professor Rory Little of all the Court's work last term in criminal cases.
Though these resources provide a fantastic overview of the Court's work in criminal cases over the last term, they have me wondering if anyone is assembling (or has assembled) any data on the Supreme Court's criminal docket over the past decade. When putting together a short piece complaining about the Supreme Court's tendency to consider on the merits too many death penalty cases (available at this link at SSRN), I was unable to locate any empirical inquiries or analysis of the Court's criminal docket.
If anyone is aware of any such data sets either in development or already available, I would be grateful for any lead or link or reference.
Some related posts:
- My (already dated) musings on the SCOTUS criminal docket
- Defense lawyers win: initial reflections on the SCOTUS term that was
- Brave New Justice and sentencing issues
- Looking ahead to SCOTUS docket dynamics
"Sentencing Children to Die in Prison"
The title of this post is the title of this piece authored by Marian Wright Edelman, President of the Children's Defense Fund, which now appears over at The Huffington Post. The post is mostly about the Equal Justice Initiative's report from last year titled "Cruel and Unusual: Sentencing 13- and 14-Year-Old Children to Die in Prison" (blogged here, overviewed here). Here are snippets from Edelman's commentary:
Ian Manuel was 13-years-old when he participated in a robbery attempt in Florida, leaving the victim with a nonfatal gunshot injury. Ian turned himself in to police, and his attorney told him he would receive a 15-year sentence if he pled guilty. Instead, he was sentenced to life in prison without parole.
Ian's is one of several stories told in the ... EJI study [which] found 73 cases in the United States where 13- and 14-year-olds have been sentenced to life without parole -- in other words, sentenced to die in prison....
The EJI study echoes and reinforces the findings of the Children's Defense Fund's Cradle to Prison Pipeline® report, our national call to action to prevent and divert children and youth from a trajectory that leads to marginalized lives, imprisonment and even premature death. EJI's work to draw attention to these children and its nationwide campaign to challenge and end these harsh sentences are valuable contributions to dismantling the Pipeline to Prison.
Interesting "loss" issue in Sixth Circuit case
The Sixth Circuit this morning has an interesting discussion of loss calculations within the federal guidelines in affirming a sentence in US v. Simpson, No. 07-5840 (6th Cir. Aug. 18, 2008) (available here). Here is how the Simpson opinion starts:
Defendant Harold Simpson appeals the sentence and order of restitution imposed for his crime of mail fraud. For several years, Simpson underreported payroll information for his businesses to his workers’ compensation insurance carriers. The district court concluded that the “loss” caused by this conduct was the amount of additional premiums that the insurance carriers would have charged had they been given accurate information. The court then used those figures to calculate Simpson’s Sentencing Guidelines range and the amount of restitution due to the carriers. On appeal, Simpson argues that the proper measure of loss was not the unpaid premiums, but the amount of money that the carriers actually paid on claims. This argument fails, however, because what Simpson took through his deceit was insurance coverage, and the fair market value of that coverage was the amount of the unpaid premiums. We therefore affirm the judgment of the district court.
Letting them out when sick or dying
This effective article from Alabama highlights one way that states are looking to reduce their prison populations:
Next month Alabama will start releasing sick or dying prison inmates, a move that state prison officials say immediately will start saving taxpayers millions of dollars.
Each sick or dying prisoner costs the state $60,000 to $65,000 in medical costs, and about 125 state inmates will be eligible for the furloughs that start on Sept. 1 said Prison Commissioner Richard Allen. But victims rights advocates say the program is so broad it will lead to dangerous criminals getting back on the streets and doesn't save any money because it only transfers the costs from one government agency to another.
There are about 25,000 inmates in Alabama prisons, and prisoners eligible for the program are 55 or older and have life-threatening illnesses -- none convicted of capital crimes and most sex crimes will be eligible, Allen said.
A Montgomery Advertiser review found 37 states have some program allowing for the early release of dying or infirm prisoners, according to state Department of Corrections policies. A Justice Department official said rising medical costs and mandatory sentencing guidelines that lock prisoners up for longer terms are the reasons so many states have implemented the furloughs, also called humanitarian paroles or compassionate releases. Capt. Ron McCuan, a health analyst with the National Institute of Corrections, a Justice Department agency, said state officials are looking for new ways to reduce health-care expenses....
Wyoming passed a law in March that went into effect July 1, said Belinda Brazzale, a spokeswoman for the prisons system. For a terminally ill inmate to be considered for release, he or she must have a life expectancy of 12 months or less.
Ohio prison system officials are looking to change the requirement that terminally ill inmates must have a life expectancy of 6 months or less before being considered, said Sara Andrews, superintendent of the Adult Parole Authority. Ohio has had a medical parole law on the books for more than 25 years. It was last updated in 1995. A bill pending in the state Legislature "would broaden the scope of release," she said.
Oklahoma's prisons system began "medical parole" in 2000. Since then about 135 inmates have been released, said Bob Mann, coordinator of clinical social work for the state's prisons system. There have only been "one or two inmates" returned to the prisons who were granted medical parole, Mann said.
North Carolina has about 39,000 inmates in its prison system, according to the agency's Web site. Department of Corrections officials are trying to determine how many of those inmates may be eligible for the medical furlough system, spokesman George Dudley said.
August 17, 2008
A good question about prison nation ... dodged
Though I did not have a chance to watch the forum at Saddleback Church put together last night by Reverend Rick Warren (which sounds as if it was quite interesting), I am pleased to learn that someone has finally asked the candidates about US incarceration rates. According to this post at TalkLeft, Rev. Warren "asked about the contrast between the investment America makes in its educational system and the investment it makes in its 'we're number one!' prison system."
According to the TalkLeft post, both candidates talked about education policy and avoided the "prison nation" part of the question. I suppose I am not surprised, but I am deeply disappointed. Especially with a religion-oriented crowd, this question presented a great opportunity for one or both of the candidates to discuss the need for our criminal justice system to put more faith in the possibility of human redemption. In addition, the question's justifiable suggestion of a zero-sum game in the local funding of prisons and schools, one or both of the candidates could and should have used this question to stress the need to shift tough-on-crime political attitudes toward smart-on-crime policy solutions.
Because I did not see the Saddleback forum, I cannot comment further on the specifics of the question and the (non) answers. But I do want to complement Rev. Warren for asking the right kind of public policy question and question the failure of either candidate to provide the right kind of "straight talk" answer.
Some related posts on Campaign 2008:
Acquitting and downloading some additional USSC priorities
As noted in this prior post, earlier this month the US Sentencing Commission posted here its "Federal Register Notice of proposed priorities and request for public comment." Though I am pleased to see some of what the USSC is suggesting as priorities, I am disappointed by some notable omissions from the current proposals.
Specifically, I had heard some rumors that the USSC was going to take a new and focused look at acquitted conduct enhancements. Perhaps this topic is on the USSC's agenda, but the current list of proposed priorities do not say boo about acquitted conduct. I often asked, by reporters and others, about how many federal sentencing cases involve acquitted conduct enhancements. I strongly believe that the Commission should, at the very least, assemble and analyze data on the frequency and impact of acquitted conduct sentencing enhancements.
In addition, I have lately noticed an extraordinary amount of variation in the charging, bargaining and sentencing realities in child porn downloading cases. (The recent Rausch decision reported here and this local article reporting on another of these sad cases provides a good example of how many judges do not seem to find the extant guidelines to be a good guide in these cases.) I plan to write directly to the Commission to encourage it to take a very close look at the growing universe of federal child porn prosecutions and sentences.
Are all states going to need to create old-age prisons?
This article in today's Kansas City Star, headlined "Missouri uses special unit to cope with growing numbers of geriatric inmates," spotlights one way that one state is dealing with an aging prison population. Here are excerpts:
As states and the federal government struggle to deal with the result of inmates serving more time, corrections experts seek solutions or at least ways to cope. One is the “Old Timer’s Unit” at Moberly Correctional Center. Burton is one of 22 prisoners there. The average age is 63.
Kansas provides hospice care at prisons and is building a $6 million clinic at Lansing that will house its sickest male prisoners. Florida has geriatric wings in four prisons. In California’s huge penal system, a federal receiver who oversees prisons recently asked a judge to seize $8 billion from the state to build medical units for sick and mentally ill inmates....
Only 5.24 percent of Missouri inmates were over the age of 50 in 1995, compared with 13.4 percent last year. In Kansas it was 6.1 percent in 1995 and twice that last year....
The Old Timer’s Unit remains the only one of its kind in the state, but that could change, Warden Dean Minor said. He is on a corrections department task force studying how to handle the aging prisoner problem. Putting them in a cell alone made obvious sense because some could not climb to a top bunk, he said, and the personal toilet and sink give them privacy. “At that juncture in life,” he said, “privacy becomes more of an issue.”
Some related posts:
Persistent confusion over ex-felon voting rights
This local Alabama piece, headlined "State's felon voting law still unclear," tells a story that seems too common: even when states make efforts to restore the voting rights of former felons, legal confusion and uncertainty often reigns. Here is the start of an interesting piece:
When Alabama made it easier for certain felons to regain the right to vote, it was hailed as a victory. But the law designed to make it easier for them to regain their voting rights has caused confusion and lawsuits -- because only crimes involving "moral turpitude" include disenfranchisement as part of the penalty. The state has no definitive list of which specific crimes cost a person their voting rights and which don't, and it's not likely to get one before the November elections.
Like most states, Alabama restricts the rights of felons to vote. The Sentencing Project estimates some 250,000 people in the state are ineligible to vote because of a felony conviction.
The new law was supposed to make it easier for felons who had done their time to regain their voting rights. Though an advocate for felon voting rights said the situation has improved since the law went into effect in 1993, the phone still rings off the hook every election year at the pardons and parole board with people asking questions.
As the piece suggests, The Sentencing Project is the place to go for information and resources about felon voting rights. This March 2008 document from The Sentencing Project, titled "Felony Disenfranchisement Laws in The United States," documents some of the basics. Unfortunately, in Alabama and many other states, the basic laws do not provide easy or complete answer to exactly who is and who is not eligible to vote.